Saturday, July 22, 2006

Corn syrup dressed as fruit okay under California law

Williams v. Gerber Products Co., 2006 WL 1993250 (S.D. Cal.)

This case concerns baby food, a subject never far from my mind at present. Plaintiffs challenged Gerber’s advertising for its Graduates for Toddlers Fruit Juice Snacks, alleging violations of California consumer protection law, negligent and intentional misrepresetnation, and breach of warranty.

The allegedly deceptive representations were: (1) the principal display panel features the words "Fruit Juice" and images of oranges, peaches, strawberries, cherries, pineapple, and other berries but the juice only contains "white grape juice from concentrate" and no juice from the fruits and berries displayed on the label; (2) the side panel features the words "made with real fruit juice and other all natural ingredients" but the product is mostly corn syrup and sugar; (3) the side panel states that Snacks is "one of a variety of nutritious Gerber Graduates foods and juices" but the product is not a nutritious food or juice; (4) the principal display panel describes the product as "Fruit Juice Snacks" but the product is mostly corn syrup and sugar and therefore a candy; (5) the descriptive phrase "Naturally Flavored" does not comply with applicable type size requirements.

The court dismissed all plaintiffs’ claims. (1) In context, the label banner reads in full “Fruit Juice Snacks,” not “Fruit Juice.” The package includes both pictures of real fruit and fruit-like substances that appear to be fruit-flavored candy. The packaging truthfully identifies white grape juice as the third most prominent ingredient, following corn syrup and sugar. Plaintiffs argued that the package is deceptive because the Snacks don’t contain any of the fruit depicted on the packaging. But the court – quite wrongly – held that the depiction of fruit on the label is not a “specific affirmative representation” that the product contains those fruits. Now, it’s surely true that putting a cartoon zebra on a label isn’t a representation that the product contains a zebra. But fruit, a standard component of fruit products and something that is in products with which Gerber Graduates compete, is exactly the kind of ingredient a reasonable consumer would expect in the product if there’s a picture of it on the label.

The court was also seduced by the idea that, since there are fruit-like substances on the package that aren’t fruit, consumers wouldn’t think that the product was made of juice from the fruit-like substances – and therefore also wouldn’t think that the product was made of fruit juice. This is clever image-play on the part of Gerber’s lawyers, but deeply silly. In context, reasonable consumers would think that the fruit-like substances on the label are the snacks themselves, while the fruit represents the ingredients – another standard practice on packaging, as with gum or fruit roll-ups or Werther’s Candies, just to take the first three image searches I did.

Nonetheless, the court continued, no reasonable consumer who reviewed the package as a whole would conclude that the Snacks contained juice from the depicted fruits. Thus: “Where a consumer can readily and accurately determine the nutritional value and ingredients of a product, and the product packaging does not affirmatively mislead the consumer by means of specific representations, no reasonable consumer would be misled by the words ‘Fruit Juice Snack’ or deceived by depictions of fruit and fruit-like substances on the primary packaging label.” This ruling is inconsistent with the vast majority of cases that hold that small-print disclaimers can’t take away the deceptive impact of a main advertising claim, of which the name of the product would have to be the prime example. And it entirely skips over the issue of whether a reasonable consumer (that is, an average consumer) actually does read the ingredient list, or whether substantial numbers of reasonable consumers rely on the primary product description given in large type on the front of the package. It may well be the case that the existence of the label raises important questions about preemption, and perhaps even changes the standard of reasonableness, but the court doesn’t consider those nuances.

The court does continue, holding that the images aren’t deceptive because the fruit images indicate that the Snacks are fruit-flavored and the FDA authorizes this practice. Here would be the place to discuss the interaction between the FDCA and state consumer protection law, but we get nothing. I think this misses an important point – the product is “Fruit Juice Snacks,” not “Fruit Flavored Snacks.” Even if it’s okay to use a picture of a strawberry on your artificially strawberry-flavored product, the term “fruit juice” indicates that the flavor comes from, yes, the juice of a fruit, rather than something that has the flavor of a fruit. (Gerber apparently altered the package to make it less deceptive, but the court rightly refuses to take that into account.)

The other claims fared the same, for much the same reasons. For instance, emphasizing “made with real fruit juice and other all natural ingredients” is okay, because even though the product is mostly corn syrup and sugar, the Snacks do contain grape juice and other natural flavors, and it doesn’t say “only” or “all” “all-natural ingredients.” Again, the court’s view of what a reasonable consumer might think differs from mine.

Plaintiffs also argued that the “Naturally Flavored” part of the label didn’t conform with FDA regulations requiring it to be in a font at least half the size of “Fruit Juice Snacks.” The court found that “Naturally Flavored” was approximately half the size, and reasonable consumers wouldn’t notice the difference.

Given these conclusions, the consumer protection claims failed, as did the others – either because they weren’t false in context or because they were non-actionable puffery.

The funny thing is, even though I think the Gerber package was deceptive, I can't imagine these claims could be maintained as a class action with the new injury/reliance requirements for California law (though maybe there's something salvageable in the warranty claims).

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